State v. Wilkerson

733 S.E.2d 181, 223 N.C. App. 195, 2012 N.C. App. LEXIS 1197
CourtCourt of Appeals of North Carolina
DecidedOctober 16, 2012
DocketNo. COA12-175
StatusPublished
Cited by3 cases

This text of 733 S.E.2d 181 (State v. Wilkerson) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Wilkerson, 733 S.E.2d 181, 223 N.C. App. 195, 2012 N.C. App. LEXIS 1197 (N.C. Ct. App. 2012).

Opinion

BEASLEY, Judge.

Donuatte Marquise Wilkerson (Defendant) appeals from judgment entered on his convictions for felonious larceny after breaking and entering and felonious possession of stolen goods. For the following reasons, we find no error.

On 28 August 2009, the victim, John Dintelmann reported a break-in at his home in Hoke County to police. He reported that a 52-inch flat screen Samsung television, some laptop computers, a desktop computer, a keyboard, speakers, a Wii game, several DVDs, a laundry basket, jewelry, and some change had been stolen from his home.

Earlier that same day, Phyllis Bethea, Mr. Dintelmann’s neighbor who lived three houses down, observed a light-colored, “older model,” large-sized car driving slowly up and down the street. She watched the car pass her house three times within five to ten minutes. Ms. Bethea testified that, initially, the driver was alone in the car and was on his cell phone. However, when the car passed her house again coming from the direction of Mr. Dintelmann’s home, she observed more than one person in the car. She found the car suspicious and called police to report it. Ms. Bethea provided the police with two possible license plate numbers to the car. One of the plate numbers was registered to Defendant’s car, a white, 1996 Lincoln Town Car.

The next day, Detective Sergeant Donald Schwab of the Hoke County Sheriff’s Office went to Defendant’s home and spoke with Defendant. Defendant’s white 1996 Lincoln Town Car was parked at the residence, and Sergeant Schwab asked Defendant for his consent to search the car. Defendant consented, unlocked the car and opened the trunk. The trunk contained a laundry basket filled with several [197]*197“computer items” that matched the description of the stolen property. Sergeant Schwab seized this property and two cell phones from Defendant’s pocket. One of the cell phones, a Nokia, was Defendant’s and was serviced by T-Mobile.

At trial, the State presented testimony from Antoinette Moore, a T-Mobile Wireless records custodian. Ms. Moore provided “call details records” for Defendant’s Nokia phone. She testified that a number of calls were made from or received by Defendant’s phone on the day of the crime, starting at 10:56 a.m. and concluding at 1:24 p.m. Ms. Moore explained the process involved in transmitting cellular signals: calls made or received in a given area will be transmitted through the closest cell tower that is not busy. She provided the times, length, and tower locations of each call. Sergeant Schwab then testified that lie visited each cell tower and plotted their locations on a map according to the time the call was received by the tower. The calls began and ended in Cumberland County, where Defendant resides, following a path to and from Hoke County with the calls hitting towers 1.5 and 1.7 miles from the victim’s home in Hoke County.

Ms. Moore also testified that a text message was sent from Defendant’s phone at 10:45 a.m. Pacific Daylight Time, based on T-Mobile records housed in Seattle, Washington. Sergeant Schwab testified that he searched the phone after seizing it and found a text message in the “sent” folder to a number labeled “work.” On the phone itself, the message was time stamped at 2:45 p.m. on 28 August 2009, the day of the crime. It read, “I got a 64 inch flat Samsung.”

During trial, in anticipation of the text message evidence and outside the presence of the jury, Defense counsel objected to its admission on the grounds that it could not be properly authenticated. The court heard from both parties and, before ruling, noted that the objection by Defense counsel was a motion in limine. Before ruling the message was admissible, the court required that the State first present evidence showing that the phone was in Defendant’s possession, Defendant claimed the phone was his, Defendant’s car was seen on the victim’s street around the time of the crime, the phone records tend to establish a path of travel to the victim’s residence and back to Defendant’s residence, and a large Samsung flat screen television was stolen.

The jury found Defendant guilty of felonious larceny after breaking and/or entering, guilty of possession of stolen goods, and not guilty of felonious breaking and/or entering. The trial court arrested [198]*198judgment on the larceny conviction and sentenced Defendant to imprisonment for a period of six to eight months on the possession conviction, with sixty days active and the remainder suspended. The trial court also ordered five years of probation “in light of evicence [sic] in this case appears to be much more serious than a normal break/enter because of phone calls & text messages during the time of the crime.”

Defendant first argues that the trial court erred by admitting the text message from Defendant’s cell phone as it was not properly authenticated under Rule 901 of the North Carolina Rules of Evidence with respect to who sent the message or at what time it was sent. N.C. Gen. Stat. § 8C-1, Rule 901(a) (2011). After careful review of all of the evidence on the record, we find no error.

A motion in limine “can be made in order to prevent the jury from ever hearing the potentially prejudicial evidence thus obviating the necessity for an instruction during trial to disregard that evidence if it comes in and is prejudicial.” State v. Tate, 300 N.C. 180, 182, 265 S.E.2d 223, 225 (1980). “The decision of whether to grant... a motion [in limine] rests in the sound discretion of the trial judge.” State v. Hightower, 340 N.C. 735, 746-47, 459 S.E.2d 739, 745 (1995). This Court has previously applied this standard of review to an appeal from a denied motion in limine based on admissibility of text messages under Rule 901 of the North Carolina Rules of Evidence. State v. Taylor, 178 N.C. App. 395, 412-15, 632 S.E.2d 218, 230-31 (2006). As the trial court here made clear that it was considering Defendant’s objection as a motion in limine, we review Defendant’s appeal for an abuse of discretion. “Abuse of discretion results where the court’s ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.” State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988) (citation omitted).

Under Rule 901 “[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” N.C. Gen. Stat. § 8C-1, Rule 901(a). The rule also provides a nonexclusive list of methods of acceptable authentication, including testimony from a knowledgeable witness “that a matter is what it is claimed to be[;]” “[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances[;]” and “[e]vidence describing a process or system used to produce a result and showing that [199]*199the process or system produces an accurate result.” N.C. Gen. Stat. § 8C-1, Rule 901(b)(1), (4), (9).

Defendant cites Taylor, in support of his assertion that because he was not specifically named as the sender in any of the texts, the authentication was not proper.

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Cite This Page — Counsel Stack

Bluebook (online)
733 S.E.2d 181, 223 N.C. App. 195, 2012 N.C. App. LEXIS 1197, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-wilkerson-ncctapp-2012.